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EXHIBIT 10.1.2
$20,000,000.00
AMENDMENT NO.1
TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
originally dated as of October 2, 2000
by and among
ODYSSEY HEALTHCARE, INC.
ODYSSEY HEALTHCARE OF CENTRAL INDIANA, INC.
ODYSSEY HEALTHCARE OF PENNSYLVANIA, INC.
ODYSSEY HEALTHCARE OF NEW JERSEY, INC.
ODYSSEY HEALTHCARE OF NORTH TEXAS, INC.
ODYSSEY HEALTHCARE OF PHOENIX, INC.
ODYSSEY HEALTHCARE OF LAS VEGAS, INC.
ODYSSEY HEALTHCARE OF HOUSTON, INC.
ODYSSEY HEALTHCARE OF NEW ORLEANS, INC.
ODYSSEY HEALTHCARE OF GEORGIA, INC.
ODYSSEY HEALTHCARE OF DETROIT, INC.
ODYSSEY HEALTHCARE OF BIRMINGHAM, INC.
and
XXXXXX HEALTHCARE FINANCE, INC.
Amended as of March 29, 2001
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AMENDMENT NO. 1 TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 TO THE AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this "Amendment") is made as of this 29th day of March, 2001, by and
among ODYSSEY HEALTHCARE, INC., a Delaware corporation, ODYSSEY HEALTHCARE OF
CENTRAL INDIANA, INC., a Delaware corporation, ODYSSEY HEALTHCARE OF
PENNSYLVANIA, INC., a Delaware corporation, ODYSSEY HEALTHCARE OF NEW JERSEY,
INC., a Delaware corporation, ODYSSEY HEALTHCARE OF NORTH TEXAS, INC., a
Delaware corporation, ODYSSEY HEALTHCARE OF PHOENIX, INC., a Delaware
corporation, ODYSSEY HEALTHCARE OF LAS VEGAS, INC., a Delaware corporation,
ODYSSEY HEALTHCARE OF HOUSTON, INC., a Delaware corporation, ODYSSEY HEALTHCARE
OF NEW ORLEANS, INC., a Delaware corporation, ODYSSEY HEALTHCARE OF GEORGIA,
INC., a Delaware corporation, ODYSSEY HEALTHCARE OF DETROIT, INC., a Delaware
corporation, and ODYSSEY HEALTHCARE OF BIRMINGHAM, INC., a Delaware corporation,
(collectively, "Original Borrower"), and ODYSSEY HEALTHCARE OPERATING B, INC., a
Delaware corporation doing business as "Odyssey HealthCare of Little Rock" ("New
Borrower") and XXXXXX HEALTHCARE FINANCE, INC., a Delaware corporation
("Lender").
RECITALS
A. Pursuant to that certain Amended and Restated Loan and Security
Agreement dated October 2, 2000 by and between Borrower and Lender (as amended
hereby and as further amended, modified and restated from time to time,
collectively, the "Loan Agreement"), Lender agreed to make available to Borrower
a revolving credit loan (the "Loan").
B. Original Borrower now wishes to add New Borrower as a Borrower under
the Loan Agreement.
C. The parties now desire to amend the Loan Agreement in accordance
with the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing, the terms and
conditions set forth in this Amendment, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Lender and Borrower hereby agree as follows:
SECTION 1. DEFINITIONS. Unless otherwise defined in this Amendment, all
capitalized terms shall have the meanings assigned to such terms in the Loan
Agreement.
SECTION 2. ADDITION OF NEW BORROWER. Original Borrower and Lender agree
that the New Borrower shall from and hereafter be Borrower for all purposes of
the Loan Agreement and other documents. Accordingly, the New Borrower hereby
agrees to be bound by all of the conditions, covenants, representations,
warranties, and other agreements set forth in the Loan
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Agreement, and hereby agrees to promptly execute all further documentation
required by Lender to be executed by the New Borrower, consistent with the terms
of the Loan Agreement.
SECTION 3. CONFIRMATION OF REPRESENTATIONS AND WARRANTIES. New Borrower
hereby confirms that all of the representations and warranties set forth in
Article IV of the Loan Agreement are true and correct with respect to the New
Borrower, and specifically represents and warrants to Lender that it has good
and marketable title to all of its respective Collateral, free and clear of any
lien or security interest in favor of any other person or entity.
SECTION 4. GRANT BY NEW BORROWER OF SECURITY INTEREST. Consistent with
the intent of the parties, the undersigned New Borrower hereby grants to Lender
a continuing first priority lien on and security interest in, upon, and to the
Collateral, pursuant to and in accordance with the terms of Article III of the
Loan Agreement.
SECTION 5. ENFORCEABILITY. This Amendment constitutes the legal, valid
and binding obligation of New Borrower, and is enforceable against each such New
Borrower in accordance with its terms.
SECTION 6. COSTS. Borrower shall be responsible for the payment of all
costs of Lender incurred in connection with the preparation of this Amendment,
and all reasonable document preparation fees of Lender's in-house counsel.
SECTION 7. EFFECTIVE DATE. This Amendment shall be effective upon
execution and delivery to Lender of this Amendment by each Borrower.
SECTION 8. REFERENCE TO THE EFFECT ON THE LOAN AGREEMENT.
(a) Upon the effectiveness of this Amendment, each reference
in the Loan Agreement to "this Agreement," "hereunder," "hereof," "herein" or
words of similar import shall mean and be a reference to the Loan Agreement as
amended by this Amendment.
(b) Except as specifically amended above, the Loan Agreement,
and all other Loan Documents, shall remain in full force and effect, and are
hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided in this Amendment, operate as
a waiver of any right, power or remedy of Lender, nor constitute a waiver of any
provision of the Loan Agreement, or any other documents, instruments and
agreements executed or delivered in connection with the Loan Agreement.
SECTION 9. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of Maryland.
SECTION 10. HEADINGS. Section headings in this Amendment are included
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
SECTION 11. COUNTERPARTS. This Amendment may be executed in
counterparts, and both counterparts taken together shall be deemed to constitute
one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Amendment to
be executed as of the date first written above.
LENDER:
XXXXXX HEALTHCARE FINANCE, INC.
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Xxxxxxx Xxxxxx, Vice President
BORROWER:
ODYSSEY HEALTHCARE, INC.
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial
Officer and Secretary
ODYSSEY HEALTHCARE OF CENTRAL INDIANA, INC.
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial
Officer and Secretary
ODYSSEY HEALTHCARE OF
PENNSYLVANIA, INC.
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, Chief Financial
Officer and Secretary
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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ODYSSEY HEALTHCARE OF
NEW JERSEY, INC.
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial
Officer and Secretary
ODYSSEY HEALTHCARE OF
NORTH TEXAS
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial
Officer and Secretary
ODYSSEY HEALTHCARE OF
PHOENIX, INC.
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial
Officer and Secretary
ODYSSEY HEALTHCARE OF
LAS VEGAS, INC.
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial
Officer and Secretary
ODYSSEY HEALTHCARE OF
HOUSTON, INC.
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial
Officer and Secretary
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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ODYSSEY HEALTHCARE OF
NEW ORLEANS, INC.
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial
Officer and Secretary
ODYSSEY HEALTHCARE OF
GEORGIA, INC.
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial
Officer and Secretary
ODYSSEY HEALTHCARE OF
DETROIT, INC.
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial
Officer and Secretary
ODYSSEY HEALTHCARE OF
BIRMINGHAM, INC.
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial
Officer and Secretary
ODYSSEY HEALTHCARE OPERATING B, INC.
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx, Chief Financial
Officer and Secretary
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